Lewis v. Biegel, WD 66435.

Citation204 S.W.3d 354
Decision Date31 October 2006
Docket NumberNo. WD 66435.,WD 66435.
PartiesDale E. LEWIS, Appellant, v. B. Joseph BIEGEL (Deceased) and Mary Biegel; Biegel Refrigeration and Electric Co., Inc., Respondents.
CourtCourt of Appeal of Missouri (US)

John H. Norton, Kathryn S. Perkins, Co-Counsel, Kansas City, MO, for appellant.

William T. Session, Darwin E. Johnson, Co-Counsel, Kansas City, MO, for respondents B. Joseph and Mary Biegel.

Richard S. Wade, Columbia, MO, for respondent Biegel Refrigeration and Electric Co., Inc.

Before JOSEPH M. ELLIS, Presiding Judge, ROBERT G. ULRICH, Judge and RONALD R. HOLLIGER, Judge.

JOSEPH M. ELLIS, Judge.

Dale E. Lewis ("Dale") appeals an adverse summary judgment entered by the Circuit Court of Linn County on his First Amended Petition for Damages, which sought recovery for personal injuries suffered by Dale when an elevator he was operating failed. The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings.

I.

Our review of the grant of summary judgment was stated in Bannum, Inc. v. City of St. Louis, 195 S.W.3d 541, 544 (Mo.App. E.D.2006) (internal citations and original paragraph style omitted):

We review a grant of summary judgment de novo. The record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. Summary judgment is appropriate only when the record demonstrates that there are no genuine disputes regarding material facts and that the moving party is entitled to judgment as a matter of law. The movant bears the burden of establishing both a legal right to judgment and the absence of any genuine issue material fact required to support the claimed right to judgment.

A "material fact" is a fact of such significance or probative value as to control or determine the outcome of the litigation. Auto-Owners Mut. Ins. Co., Inc. v. Newman, 851 S.W.2d 22, 25 (Mo.App. W.D. 1993); Karney v. Wohl, 785 S.W.2d 630, 632 (Mo.App. E.D.1990). "[I]f the record contains competent evidence that two plausible, but contradictory accounts of essential facts exist, then a genuine issue of material fact remains to be resolved, because fair minded people, exercising reasonable judgment could reach different conclusions on the issue in controversy." Larison v. Pub. Water Supply Dist. # 1, 998 S.W.2d 192, 196 (Mo.App. W.D.1999). Thus, "disputes over facts that might affect the outcome of a suit under governing law preclude the entry of summary judgment. The determination of such contradictory facts is for the fact finder at a complete trial." Payne v. City of Osage Beach, 132 S.W.3d 314, 317 (Mo.App. S.D. 2004).

II.

Viewed in the light most favorable to Dale (who, as noted supra, was the party against whom summary judgment was entered) and giving him the benefit of all reasonable inferences therefrom, the record shows the following. Biegel Refrigeration and Electric Co., Inc. ("Biegel Refrigeration") was incorporated by B. Joseph Biegel ("Joe") and his wife Mary Biegel ("Mary") on January 9, 1968. At this time, both the business and a building located at 109 South Main in Brookfield, Missouri, were owned by Joe and Mary, who had originally acquired the building in 1957 and conducted their business operations in it. They continued to own and operate Biegel Refrigeration until they sold it to a holding company owned by Leslie Eggerman ("Les") and his wife Jean Eggerman ("Jean") on April 1, 1984. At this time, Les became the president of Biegel Refrigeration and Jean became the company's secretary. Thereafter, the Eggermans continued to own and operate the business under the name of Biegel Refrigeration.

However, Joe and Mary retained their ownership of the building at 109 South Main in Brookfield, inside which is the elevator Dale was riding when he was injured. On or about February 14, 1984, Mary executed a quit-claim deed transferring all of her right, title, and interest in the building to her husband Joe, which was duly recorded in the public real estate records of Linn County on February 17, 1984. On April 1, 1984, Joe (as lessor) and Biegel Refrigeration (as lessee) entered into a written lease for use of the building by Biegel Refrigeration. Although the original written lease was for a five-year term running from April 1, 1984, to March 31, 1989, the lease was subsequently renewed for two additional consecutive five-year terms through March 31, 1999, and was in effect at the time Dale was injured.

Sometime between 1975 and 1980, Joe and another person, Walter Sights ("Walt," who is now deceased), made alterations to the lifting and lowering mechanism on the elevator Dale was riding when he was injured. Prior to these alterations, the elevator had a belt-driven rack and pinion hoisting mechanism which controlled a moving wooden platform without a top or sides that ascended and descended between a set of vertical wooden guide rails. Joe and Walt replaced the elevator's original hoisting system with an electric chain hoist mechanism and added two spring-loaded hand switches to control the elevator's movement — one inside the elevator itself and the other on the ground floor of the building. While making these alterations to the original elevator, Joe and Walt also disconnected and partially removed portions of the elevator's original emergency brake system since it was incompatible with the electric chain hoist mechanism they had installed.1 This emergency brake system consisted of a "failsafe" mechanically-operated jaw-like device which was designed to engage the guide rails and cause the elevator to stop should the hoisting mechanism fail.

At no time prior to entering into the written lease did Joe, Mary, or anyone else inform the Eggermans that Joe and Walt had disengaged the elevator's emergency brake system when they made the separate alterations to the lifting and lowering mechanism on the elevator sometime between 1975 and 1980, or even that Joe and Walt had performed elevator alterations of any kind. To the contrary, neither Les nor Jean ever had any communication with Joe or Mary concerning the elevator's safety prior to Dale's accident. Moreover, they were not trained in and had no specialized knowledge regarding the mechanics of elevator operation, mechanics, or safety.

In the fall or winter of 1997, the elevator became stuck between the first and second floors of the building. The elevator had two passengers in it (Jean and another individual, Dennis Fletcher) at the time, both of whom managed to get off the elevator just before it fell to the building's basement, destroying the wooden platform on which they had been standing. The reason the elevator failed was that a metal piece called a "spline" located within the chain hoist mechanism previously installed by Joe and Walt, which constituted the mechanical means by which a steel shaft was secured to gears within the hoist system, had physically sheared off.

After this incident, the broken spline and the wooden platform were repaired or replaced. The parties introduced into the summary judgment record conflicting evidence as to what other actions may have been undertaken once those repairs were completed. According to Ted Thudium ("Ted"), who was also an employee of Biegel Refrigeration, once the broken spline and wooden platform had been replaced, Jean asked him to install, in his spare time, "some kind of a safety system" to stop the elevator if it were ever to fall again, but he never completed the work before abandoning the project some two months later due to the press of his other job responsibilities. In his deposition, Ted also indicated that it would not have been obvious to anyone using the elevator that his repair work was incomplete, that he didn't know and couldn't say if the elevator's original emergency brake system had been disconnected, and that he never discussed the status or incompleteness of his elevator brake work with Dale.

However, in their depositions both Les and Jean testified that, to the best of their recollection, neither one of them ever instructed Ted or any other employee of Biegel Refrigeration to make repairs to the elevator's emergency braking system or to try to hook up a new brake system on the elevator prior to Dale's accident. Moreover, Jean also indicated that until the time of her deposition, she was never even aware "that there had been an elevator system with a safety brake system designed that had been disconnected." Meanwhile, Dale continued using the elevator since it was the only means of ingress and egress to the second floor of the building,2 which he had to be able to access in order for him to perform the tasks associated with his employment at Biegel Refrigeration.

On October 8, 1998, while acting in the course and scope of his employment with Biegel Refrigeration, Dale was riding in the elevator on the second floor of the building, as he did some four to six times a day. Shortly after he engaged the hand switch to go down, the elevator failed for a second time and fell to the first floor of the building (a distance of approximately thirteen feet), causing him to suffer personal injuries. The reason the elevator failed this time was that the load chain previously attached to the top or crosshead of the elevator by Joe and Walter broke. Fortunately for Dale, the elevator did not fall all the way down to the basement as it had the first time because he had previously placed several wooden 2-by-12 planks in the elevator shaft at the first-floor level to make it easier and safer for him to perform repairs on the broken wooden platform after the 1997 incident.

As demonstrated by his report and the accompanying affidavit, the opinion of Dale's expert witness, Joseph L. Stabler of Stabler Associates, Inc., was that Dale's injuries were caused by "the physical modification of the subject elevator . . ....

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